Attorney/Client Privilege and Work Product Doctrine Again Addressed by Delaware Court of Chancery

AM General Holdings LLC v. The Renco Group, Inc., C.A. No. 7639-VCN (Del. Ch. April 18, 2013). A prior Chancery decision in this case was highlighted on these pages at this link.

Issue Addressed:  Whether the attorney/client privilege and the work product doctrine are defenses to a motion to compel.

Short Answer:  They can be.

Brief Overview

This is one of four Chancery decisions during the month of April, in separate cases, that addressed in a careful and balanced manner both the attorney/client privilege and the work product doctrine as defenses to a motion to compel. Each case of course presented different factual and procedural situations. The other three cases were highlighted on these pages at the following links: see Comverge, JPMorgan and Kalisman.

I selected below some of the most noteworthy aspects of this decision that has widespread practical utility.

●          Simply because an attorney created a document does not make it privileged and especially when a lawyer is performing a business function.  See footnote 2 and accompanying text.

●          An overly-broad designation of documents as privileged may result in the loss of privilege even for those documents within the set that should otherwise have been protected.  See footnote 7.

●          The court discusses the type of detail that should be in a privilege log and that it should provide a specific description and designation of the basis of the privilege in order to give the court a basis upon which to weigh the application of the privilege.  See footnotes 11 and 12, as well as accompanying text.

●          "If e-mails are privileged, but the attachments to the e-mails do not independently earn that protection, then the attachments may not be withheld on the ground of privilege emanating from the e-mail which they accompany."  See Slip op. at 10.

Read more Delaware business litigation case summaries and commentary on Delaware Corporate and Commercial Litigation Blog, a blog hosted by Francis G.X. Pileggi, of Eckert Seamans.

For more information about LexisNexis products and solutions connect with us through our corporate site.